Citation Nr: 0610225
Decision Date: 04/07/06 Archive Date: 04/13/06
DOCKET NO. 04-29 708 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to burial expense reimbursement based on a
service-connected disability that is the primary or a
contributory cause of the veteran's death.
ATTORNEY FOR THE BOARD
Linda E. Mosakowski, Associate Counsel
REMAND
The discharge certificate supplied by the appellant indicates
that the veteran served on active duty from November 1941 to
November 1943. He died in August 2003 and the executor of
his estate (appellant) filed a claim for burial benefits in
November 2003. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from the action of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Atlanta, Georgia.
The veteran's complete claims file is not before the Board.
A rebuilt claims file was used to process the appellant's
claim. There is no indication that the RO tried to obtain
the original file in connection with the current claim.
Nothing in the rebuilt file indicates that the RO notified
the appellant of what evidence was needed to decide the claim
or what records the RO would obtain. The RO did not obtain
the veteran's medical treatment records from VA facilities.
VA did not meet either the notice or assistance requirements
of 38 C.F.R. § 3.159 (2005).
Generally, if a veteran dies as a result of a service-
connected disability, an amount not to exceed $2,000, may be
paid toward the veteran's burial and funeral expenses. See
38 U.S.C.A. § 2307 (West Supp. 2005); 38 C.F.R. § 3.1600(a).
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. 38 C.F.R. § 3.312(a).
In the rebuilt file, there is conflicting evidence about the
veteran's service-connected disability. The file contains no
rating decision that grants service connection for any
disability. A May 1997 rating decision denying a claim for
aid and assistance includes the information that the veteran
had been granted service connection for a blood condition
under Diagnostic Code 7399 and rated 100 percent disabled
from November 1, 1994. (Diagnostic Code 7399 is used to
denote a disorder that is not included on the schedule of
ratings for the digestive system under 38 C.F.R. § 4.114.)
The C& P Master Records, which show the payments made to the
veteran for the years 1994 through 1996, indicate that
payments were made pursuant to Diagnostic Code 7799.
(Diagnostic Code 7799 is used to denote a disorder that is
not included on the schedule of ratings for the hemic and
lymphatic systems under 38 C.F.R. § 4.117.)
The appellant provided a copy of a November 1975 letter from
the RO in Atlanta, Georgia, which informs the veteran that,
at that time, their records reflect that he was rated 100
percent permanently and totally disabled due to a service-
connected disability. Neither the identity of the service-
connected disability nor its Diagnostic Code is included in
that letter. But the letter raises the possibility of a
service-connected disability earlier than November 1994.
The appellant asserts that the veteran's disability began
even earlier--when he was bitten by insects while still on
active duty in New Guinea. He visited the veteran in the
hospital shortly before the veteran was discharged in 1943
with a Certificate of Discharge due to Disability. The
appellant recalls hearing several medical terms (including
filariasis, elephantiasis, and lymphangitis) used to describe
the veteran's condition. On the veteran's August 2003
terminal hospital records, the medical history includes a
notation of filariasis since 1942. A 1944 letter from the
veteran's former commanding officer (which was received by
the Board in November 2004, after the matter had been
certified for appeal) asks the veteran how his leg is doing
and hopes that he is feeling better. There is a hospital
form from 1979 that lists the veteran's admission diagnosis
as cellulitis of the left leg.
With the record unclear as to whether the veteran was granted
more than one service-connected disability, further
development is necessary to determine if a service-connected
disability was the principal or a contributory cause of the
veteran's death.
Accordingly, the appeal is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC., for the
following action:
1. Send the appellant a letter that meets
the notice requirements of 38 C.F.R.
§ 3.159(b).
2. Search again for the veteran's
original claims file. Although an earlier
search did not produce it, it is possible
that the file may now be retrieved.
3. Because the veteran's original claims
folder is missing, attempt to obtain
alternative records concerning the
veteran's disease or injury during
service, including the veteran's
Certificate of Discharge due to
Disability, any Surgeon General's Office
records, and any service medical records
that may be available.
4. Obtain the veteran's VA medical
treatment records from his 1943 discharge
through August 2003.
5. Ask the appellant for the veteran's
1943 to 2003 private medical treatment
records that are relevant to this claim.
Supply him with waiver forms to allow VA
to assist him in obtaining the records.
6. Attempt to ascertain the disability
(or disabilities) for which service
connection was granted during the
veteran's lifetime, as well as the
disability evaluation, including the 100
percent service-connected disability
referred to in the November 1975 letter
from the Atlanta, Georgia, RO to the
veteran, which was provided to VA by the
appellant in January 2004.
7. Then, readjudicate the claim.
Consider the 1944 letter from the
veteran's former commanding officer to the
veteran, which was not before the RO when
the May 2004 Statement of the Case was
issued. If necessary, obtain a medical
opinion as to whether any service-
connected disability was the principal or
a contributory cause of death within the
meaning of 38 C.F.R. § 3.312(a).
6. If any sought benefit is denied,
issue the appellant a supplemental
statement of the case (SSOC). After the
appellant has been given an opportunity to
respond to the SSOC, the claims file
should be returned to this Board for
further appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).